Strikes can be used by employees to protest unjust salaries or other grievances with their company. Workers do not supply any services to the company that employs them during a strike. There are, however, restrictions against firing or retaliating against people who choose to strike. Examine how employees are compensated during strikes and what their rights are while on strike.
How do You Protect Benefits While on Strike?
It is critical to ensure that employees will have a job once the strike is done by ensuring that the strike is legitimate. A strike can be protected under the National Labor Relations Act (NLRA) in two ways, according to the National Labor Relations Board (NLRB).
If a strike is found to be either an economic strike or an unjust labor relations strike, it is legal. Under the NLRA, these are referred to as legal objects. A legal economic strike is one that is carried out in order to seek greater salaries, shorter working hours, or other goals that would boost one’s earning potential. All other strikers are considered unfair labor practice strikers in general.
Workers may be replaced by their employers if a strike is called for economic reasons. Striking workers must be permitted to return to a similar post or be the first summoned when new roles become available if the union agrees to halt the strike without conditions. Strikers who demand reforms to unfair work practices are almost always unable to be replaced. The sole exception is if an employee commits serious wrongdoing while off the clock.
In general, persons who participate in a lawful strike are not deprived of their health insurance or other benefits. While workers may not get these benefits while on strike, they must be made accessible to them whenever they return to work. If a worker earns vacation time while on strike, for example, he or she must be awarded that time when they return to work. Other benefits, such as contributions to a retirement plan or contributions to a Health Savings Account, may be available to employees (HSA).
Are Workers Paid While on Strike?
When a worker goes on strike, they are not eligible to receive a regular wage from their company. Many unions, on the other hand, will establish a strike fund to assist striking employees in meeting their basic financial necessities. Members of the United Automobile Workers (UAW) receive weekly salary as well as bonus checks for the holidays of Thanksgiving and Christmas.
Employees of the International Brotherhood of Teamsters are entitled for either a $75-$110 weekly flat rate or a payment equivalent to four times their weekly contribution. Workers may receive some or all of their insurance coverage paid for in addition to strike compensation. In some situations, the union will make COBRA payments to keep employees covered while they are on strike.
If the union does not make COBRA payments on behalf of its members, the employees may be able to do so on their own. This qualifies individuals to the same coverage they had while working, which usually lasts for up to 18 months. Those who choose this option, however, must pay the entire monthly payment on their own.
It’s worth noting that if you live in a right-to-work state, you may be able to withdraw from a union or not join one at all. This means that in states like Texas or Virginia, a worker can leave a union and return to work if the firm remains open during a strike.
Are Workers Eligible for Unemployment Benefits?
In most cases, a worker who goes on strike is not eligible for unemployment compensation. Because workers who are on strike are often thought to have left their jobs freely, this is the case. They are not actively hunting for new jobs in the majority of situations since they are likely to return to their current workplace once the strike is ended. As a result, they would not be eligible to receive such benefits.
There are exceptions to this law, depending on whether the person went on strike voluntarily or if he or she remained unemployed after the strike ended. Furthermore, depending on how long the strike lasts, state law may allow a person to claim unemployment benefits during it.
In New York, for example, if a strike lasts more than 49 days, a worker may be eligible to file for and receive unemployment benefits. If workers are locked out rather than going on strike, New York law may allow them to claim benefits sooner than 49 days. A lockout is a management move that requires employees to be away from work for an extended period of time.
If you’re on strike and have questions regarding your rights, speak with your union representative. This person might be able to answer questions regarding what advantages they provide to strikers and how going on strike would affect their job status in the future. It’s also a good idea to speak with an attorney who can answer questions about their right to file for unemployment or other benefits while unemployed.
Speak to an Experienced Labor Law Attorney Today
This post is meant to be both instructive and helpful. Even routine legal problems, however, can become complicated and frustrating. A skilled labor lawyer can help you with your specific legal issues, explain the law, and represent you in court. Contacting a local labor attorney to discuss your individual legal issue is the first step.
How can employers deal with legal strikes?
o Section 68(1) of the Act grants the Labour Court exclusive jurisdiction to issue an interdict prohibiting any person from participating in a strike that violates the Act’s provisions, or from engaging in any action in preparation for or in promotion of such a strike.
Is there such a thing as strike insurance?
Strike Coverage is a type of business interruption insurance that covers losses incurred as a result of a labor strike disrupting operations.
What happens when a union goes on strike?
Any union member who crosses the picket line or refuses to participate in strike activities is subject to penalties and/or assessments, according to the union constitution. Union seniority will be lost if you cross the picket line or do not participate in the strike.
Are workers dismissed when they are on strike?
Importantly, employees are not fired if they participate in a legally protected strike. The difference between a work stoppage and a strike is that in a work stoppage, the participants do not make a demand; instead, they simply stop working.
What are the rights of employees during strike?
Employees may not be fired for taking part in a legally justified strike. Employees who cause damage to their employer’s or another person’s property at work during the strike may be fired. As a result of the strike, employees may be retrenched for operational reasons.
What makes a strike illegal?
Conciliation is conceived as a mild form of intervention by a neutral third party, the Conciliator-Mediator, who, relying on his persuasive expertise, actively assists parties by attempting to keep disputants talking, facilitating other procedural niceties, carrying messages back and forth between the parties, and generally being a good fellow who tires to keep things calm and forward-looking in a tense situation.
Mediation is a modest intervention by a neutral third party, the Conciliator-Mediator, in which he begins advising the parties or giving answers or alternatives to the difficulties with the goal of supporting them in finding a mutually acceptable settlement of the conflict on their own.
By submitting a formal request for conciliation and preventive mediation to NCMB or any of its Regional Branches, any party to a labor dispute, whether the union or management, may seek the assistance of NCMB or any of its Regional Branches. A request for consultation, notice of preventive mediation, or notice of strike/lockout may be filed, depending on the nature of the problem.
The NCMB Central Office or any of its Regional Branches can receive an informal or formal request for conciliation and mediation services. The NCMB currently has fourteen (14) regional offices strategically situated throughout the country for the convenience of prospective clients.
WHAT ARE THE REASONS FOR A STRIKE/LOCKOUT NOTICE OR PREVENTIVE MEDIATION CASE?
Unfair labor practice laws, egregious violations of the CBA, or deadlock in collective bargaining can all be grounds for a strike or lockout. A complaint filed on any of the grounds listed above must be detailed in the NCMB Form or the proper complaint form.
Any matter may be brought before the NCMB Central Office or its regional offices for conciliation and possible settlement through a letter in the case of preventative mediation. Because of the non-adversarial tone that characterizes conciliation conferences, this strategy is preferable than a strike/lockout warning.
Conciliation and mediation are non-adversarial, less expensive, and faster than litigation. Under this informal arrangement, the parties find it more convenient to fully ventilate their different positions without getting bogged down in legal jargon, giving them a larger range of viable solutions to the problem.
Obviously, the parties are obligated to honor any agreement they make. It is important to note that such an agreement was reached after extensive negotiations between the union, management, and the Conciliator-Mediator. As a result, it is only natural to anticipate that the Conciliator assigned to the case will be responsible for following up and monitoring the agreement’s execution.
IS CONCILIATION AND MEDIATION SERVICE STILL AVAILABLE DURING AN ACTUAL LOCKOUT OR STRIKE?
Certainly, an actual strike or lockout may be subjected to ongoing conciliation and mediation services. Indeed, it is at this key point that such conciliation and mediation services should be extensively utilized to work out a feasible labor dispute resolution. The skill of the Conciliator-Mediator to put the parties at ease and put them in a cooperative mood may yet result in the eventual resolution of all the issues involved.
IS IT POSSIBLE TO REMAND A DISPUTE TO CONCILIATION AND MEDIATION SERVICES AFTER IT HAS BEEN ASSUMED OR CERTIFIED TO THE NLRC?
Yes, the parties are not barred from using the services of an NCMB Conciliator-Mediator because the duty to bargain jointly continues until all problems in the dispute are resolved. Conciliation is so widely used that, before a mandatory arbitration ruling, the parties are encouraged to exhaust all feasible options of mutually resolving their disagreement, including conciliation and mediation services.
WHICH PARLIAMENTARY RULE OF CONDUCT SHOULD BE OBSERVED ESSENTIALLY DURING CONFERENCES?
- Attend each meeting on time. Concentrate on the merits of the case and stay on topic.
- Make sure you have the proper authority to communicate and make decisions on behalf of your principal. Make a good faith deal.
- Actively listen and be receptive to new ideas and suggestions. Negotiate with a flexible position rather than a rigid one.
- Always maintain a friendly demeanor and respect the other person’s viewpoint. Remember, we’re all interested in finding a solution to a problem.
The primary function of the Conciliator/Mediator is to assist disputing parties in reaching an agreement.
- STRIKE – Any brief halt in production caused by a concerted action of employees in response to an industrial or labor conflict. (Labor Code, Art. 212 (0), as amended by Sec. 4, R. A. 6715.)
- PEACEFUL PICKETING – During strikes, workers have the right to march to and from the premises of a company involved in a labor dispute, usually accompanied by the carrying and display of signs, placards, or banners with remarks about the conflict. (October 19, 1987, GUIDELINES GOVERNING LABOR RELATIONS)
- LOCKOUT – refers to an employer’s temporary refusal to provide work as a result of a labor or industrial dispute. (Labor Code, Section 212 (p), as amended by Section 4, R.A. 6715.)
- STRIKE IN THE COURT OF LAW one that has a legal justification and is carried out in a legal manner.
- ILLEGAL STRIKE one staged for a purpose not recognized by law, or one performed using means not sanctioned by law if for a lawful reason.
- ECONOMIC STRIKE a strike called by employees to compel the employer to make salary or other economic concessions that he is not legally obligated to make (Consolidated Labor Association of the Phil. vs. Marsman and Company, 11 SCRA 589)
- The ULP STRIKE was called to protest the employer’s unfair labor practices, which are included in Article 248 of the Labor Code, as modified, and include egregious violations of the collective bargaining agreement (CBA) and union busting.
- STRIKE SLOWING one in which workers only slacken or reduce their typical work output rather than quitting their jobs.
- STRIKE OF THE WILD-CAT one proclaimed and staged without filing the requisite strike notification and without the recognized bargaining agent’s majority approval.
- SIT DOWN STRIKE is a type of strike in which workers stop working but do not leave their jobs.
Any controversy or matter involving terms or conditions of employment, or the association or representation of persons in negotiating, fixing, maintaining, changing, or arranging the terms and conditions of employment, whether or not the disputants are in the proximate relationship of employer and employee, is considered an industrial or labor dispute. (Labor Code, Section 212 (1), as amended by Section 4, R.A. 6715)
Within the context of labor relations and collective bargaining, workers have the constitutional and legal right to strike, whereas employers have the inherent and statutory right to lockout. It is a last resort option that assumes the responsibility to bargain in good faith has been met and that all other voluntary dispute resolution options have been attempted and exhausted. (Labor Relations Policies and Procedures).
In the event of a standstill in negotiations or an unfair labor practice, any certified or lawfully authorized negotiating agent may call a strike. In the same circumstances, the employer may declare a lockout.
Any authorized labor union in the business may announce a strike in the absence of a certified or duly recognized negotiating agent, but only on the grounds of unfair labor practice. (As amended, Section 2, Rule XIII, Book V, Omnibus Rules Implementing The Labor Code.)
A lockout or a strike If the issues addressed are unfair labor practices, notice must be filed with the National Conciliation and Mediation Board (NCMB) at least 15 days before the intended date of the strike or lockout, or at least 30 days before the intended date if the issue is negotiating deadlock.
The 15-day cooling-off period does not apply in cases of dismissal from employment of union officers duly elected in accordance with the union constitution and by-laws, which may constitute UNION BUSTING where the union’s existence is threatened, and the union may take action immediately after the strike vote is held and the results submitted to the Department of Labor and Employment.
A strike must be allowed by a majority vote of the Union’s members, and a lockout must be approved by a majority vote of the Corporation’s or Association’s Board of Directors, or the partners in a partnership, gained by secret ballot in a meeting scheduled for that purpose.
A strike or lockout VOTE must be reported to the NCMB-DOLE Regional Branch at least 7 days prior to the planned strike or lockout.
If the strike/lockout ballot result is filed within the cooling-off period, the 7-day requirement will be tallied from the day after the cooling-off period has expired. (NSFW vs. Ovejera, May 31, 1982, G.R. No. 59743) The time requirement for filing the Notice of Strike shall be waived in the case of removal from employment of union officers, which may constitute union busting, but the strike vote requirement, which is mandatory in nature, shall be complied with “in every circumstance.”
The dispute cannot be the subject of an assumption of jurisdiction by the President or Secretary of Labor and Employment, a certification for mandatory arbitration, or submission to mandatory or voluntary arbitration, nor can it be the subject of a pending case involving the same grounds for the strike or lockout.
The legislation recognizes two reasons for exercising the right to strike or lockout: Collective Bargaining Deadlock (CBD) and/or Unfair Labor Practices (ULP) (ULP).
MAY A UNION OR THE EMPLOYER FILE A NOTICE OF STRIKE OR A NOTICE OF LOCKOUT IF THE LABOR DISPUTE IS NOT BASED ON ULP OR CBD?
No, other than ULP and CBD, the union/employer is not allowed to file a notification. Except for flagrant and/or malicious refusal to comply with its economic provisions, violations of Collective Bargaining Agreements are not considered unfair labor practices and are not strikeable, and no strike or lockout may be declared on grounds involving inter-union and internal union disputes, or issues brought to voluntary or compulsory arbitration, including legislated wage orders and labor standard cases.
However, if the Notice of Strike or Lockout is filed inadvertently and it appears on the face of the notice that the issues raised are non-strikeable or that the real issues discovered during conciliation proceedings are not proper subjects of a Notice of Strike or Lockout, the NCMB Regional Branch may dismiss the notice motu proprio, without prejudice to further conciliation, or upon the request of either or both parties, in which case the Notice of Strike or Lockout is treated as a (See Appendix 3, Definition of Terms, for a definition of a preventive mediation case.)
The notice must include the names and addresses of the employer and the union involved, the nature of the employer’s industry, the number of union members and workers in the bargaining unit, and any other relevant information that may aid in the resolution of the dispute, such as a brief statement or enumeration of all pending labor disputes involving the same parties.
In the event of a bargaining deadlock, the notice must, to the extent possible, describe the unsolved points in the negotiations and be supported by the union’s written proposals, the employer’s counter-proposals, and documentation of a request for a conference to resolve the differences.
In cases of unfair labor practices, the notice must, to the extent possible, identify the acts complained of as well as the efforts made to reach an amicable resolution.
The NCMB, through its Conciliator-Mediators, shall call the parties to a conference as soon as feasible after receiving a valid notice of strike or lockout in order to actively assist them in exploring all options for an equitable settlement. To this aim, the Conciliator-Mediator may suggest/offer solutions as an alternate means of resolving their disagreement/conflict, which may or may not be binding on the parties. If conciliation/mediation fails, the parties will be urged to submit their disagreement to voluntary arbitration.
WHAT ARE THE LEGAL IMPLICATIONS OF FAILING TO COMPLY WITH THE CONTENT-REQUIREMENT OF THE NOTICE OF STRIKE OR LOCKOUT?
Any notice that does not meet the aforementioned standards is judged not to have been submitted.
To ensure that the decision to strike is made by the majority of Union members, not just a small minority, and to discourage wildcat strikes, union bossism, and even corruption at the same time.
To ensure that a strike vote was taken, and to provide members with an opportunity to take appropriate action before it is too late if the information is untrue.
The Cooling-Off Period, which lasts between 15 and 30 days, is designed to allow parties to reach an amicable resolution with the help of the NCMB Conciliator/Mediator. If the issue is not resolved after the required number of days have passed from the mandatory filing of the notice, the labor union may strike or the employer may begin a lockout after meeting the 7-day filing deadline for the strike or lockout vote, as the case may be.
Declaring a strike or lockout on the basis of inter-union and intra-union disagreements, or on problems that have been referred to voluntary or mandatory arbitration.
Declaring a strike or lockout without first bargaining collectively, without first filing the required notice, or without first obtaining and reporting the necessary strike or lockout vote to the NCMB’s Regional Branch.
Declaring a strike or lockout in defiance of a cease-and-desist order, or an order for striking employees to return to work and the employer to accept them after the President or Secretary of Labor and Employment assumes jurisdiction, or after certification or submission of the dispute to compulsory or voluntary arbitration, or while a case involving the authorized grounds for the strike or lockout is pending.
obstructing, impeding, or interfering with any peaceful picketing by employees during any labor dispute or in the exercise of their right to self-organization or collective bargaining using force, violence, coercion, threats, or intimidation, or aiding or abetting such obstruction or interference.
No governmental official or employee, including officers and personnel of the Philippine Armed Forces, the Philippine National Police, or any other armed person, shall
- bring in, introduce, or escort any anyone who attempts to replace strikers in entering or departing a strike area in any way, or
What makes a strike unprotected?
South Africa is no stranger to industrial action, having experienced long-term strikes in the past, such as the 2014 AMCU strike, which saw 70 000 AMCU members employed by Lonmin, Impala Platinum, and Anglo-American Platinum lay off for about five months. Similarly, as a country, we are all too aware of the destructive consequences of strike action, as evidenced by the horrific events that occurred during the 2012 strike at Lonmin, during which 44 people tragically died.
All employees have the right to strike under Section 23 of the Constitution of the Republic of South Africa 108 of 1996. This is against Section 65 (1) (d) of the Labour Relations Act (LRA), which places limitations on this right when the employee is performing a necessary service.
However, there are some standards that must be completed in order for a strike to be recognized valid and hence protected for employees who are not restricted or engaged in critical services. In this regard, Section 64 of the LRA lays forth the conditions that must be met in order for a strike to be valid and thus protected by the LRA.
The topic in dispute must first be addressed to the CCMA or the applicable Bargaining Council for Conciliation, according to S64 of the LRA. After that, the tribunal or forum must provide a certificate of outcome stating or indicating that the subject is still open. Alternatively, 30 days must have passed after the dispute was first referred. After the referring party or the party wishing to engage in strike action receives a certificate indicating that the matter has not been resolved, the referring party or the party wishing to engage in strike action must give the employer 48 hours written notice of the strike’s start, unless the employer is the state, in which case the required notice period is 7 days.
Although some procedural conditions must be met in order for a strike to be considered protected, there are some circumstances in which the parties may opt out of the statutory processes outlined in S64 of the LRA. Employees strike in reaction to an employer who has gone on a lock-out that does not conform with S64, or where the parties are members of a specific bargaining council and the constitution of such council specifies how the dispute should be handled.
Industrial action that does not conform with the LRA’s provisions will not be protected by the law and may result in civil penalties for those involved, making it an unprotected strike.
According to Section 68 of the LRA, any activity in preparation for or in support of a strike that does not conform with the LRA’s standards is subject to the Labour Court’s exclusive jurisdiction, which can issue interdicts in the case of an unlawful strike. The LRA also gives the Labour Court the power to impose the payment of just and equitable compensation for any damage incurred by an employer as a result of unprotected strike action.
The fact that participation in an unprotected strike is considered misconduct under Item 6 of Schedule 8 of the Code of Good Practice, and may justify dismissal, is arguably the most serious consequence of an unprotected strike for employees. When an unprotected strike was planned to put maximum pressure on an employer or undermine the employer’s authority, or when an ultimatum was provided and the employees refused to return to work, dismissal was found to be an appropriate consequence.
The Labour Appeal Court considered the requirements of Item 6 in the 2017 County Fair Food v FAWU & others case, stating that “our courts have frequently stated that engaging in an illegal strike constitutes serious and unacceptable behaviour.” The employees in this case refused to return to work despite being repeatedly told to do so.
As a result, the Court concluded that “the evidence demonstrated that the Union and the employees had no consideration for the effects of their activities on the employer’s business or the employment relationship.” In the circumstances, the Court determined that the sentence of dismissal was appropriate.
Employees from another company may go on a secondary strike, also known as a sympathy strike, in an attempt to increase pressure on the employer. Secondary strikes are a type of strike that, like primary strikes, are subject to statutory requirements that must be met in order for the secondary strike to be considered protected under the LRA.
In this regard, Section 66 of the LRA states that no one may participate in a secondary strike unless they meet the following criteria:
- The strike that will be supported is in accordance with Sections 64 and 65;
- The employer of the secondary strike participants, or, if applicable, the employers’ organization of which that employer is a member, has received written notice of the proposed secondary strike at least seven days before it begins; and
- The secondary strike’s form and scope are acceptable in light of the secondary strike’s potential direct or indirect impact on the primary employer’s company.
Because secondary strikes constitute a type of strike, they are not only accorded the same protections and immunities as strikes in general, but they also face the same liabilities as those imposed by Section 68 if they do not comply with the LRA’s provisions.
Can you get Cobra on strike?
Employee health insurance coverage for unionized employees is not required by federal or state law while they are on strike. Under COBRA, the employee is responsible for paying the entire premium (including what would normally be the employer’s contribution); the employer is not liable.