To strike, or not to strike
Just after the country's theatre and concert stages opened after the corona closure, a strike puts a new wet blanket on cultural joy. Last week, the strike among cultural employees was further escalated, and both the Opera and the country's largest theatres must now cancel major performances. This affects both the audience and fellow artists who are outside the strike. Unmusical, some believe - the only way to safeguard the interests of workers, others believe.
1. The right to strike
Groups of workers can initiate strikes in so-called conflict of interests (on-jural disputes). These are disputes between a trade union on the one hand and an employer or employers' organization on the other, and where the dispute concerns disagreement about future working and wage conditions. It is a prerequisite that the terms are either not regulated in a collective agreement by which the parties are bound, or that the previous collective agreement has been terminated.
As long as it is a collective agreement between the parties, the employees must relate to it and respect the so-called peace obligation – i.e., the obligation not to strike. Disputes concerning the validity, understanding or existence of a current collective agreement are referred to as legal disputes. These must be resolved by legal means in cases before the Labour Court or arbitration.
The right of workers to strike is not expressly stated in any law. The right to strike is, however, interpreted in the basic rules on freedom of association, which are enshrined in both the Constitution and the European Convention on Human Rights (ECHR). The reason for this is that the employees' right to organize and form trade unions would easily become meaningless without a means of pressure to change working and wage conditions.
This means of pressure is a collective work stoppage - a strike. Employers can similarly seek to push through their demands by implementing a so-called lockout. This is a complete or partial work stoppage initiated by the employer. However, lockout is significantly less used in practice than workers' access to strikes.
The conditions for going on strike follow from the Labour Disputes Act. The law provides detailed rules on the procedure the parties must follow before a labour dispute can be initiated, including termination of a previous collective agreement, negotiations between the parties, termination of employment, and mediation with the Chief State Mediator.
When mediation has been carried out without a solution, and the collective agreement has expired, the employees can go on strike to put in place a new agreement with better working and wage conditions. There are no requirements for the strike's proportionality, factual and justifiable connection with the working and wage conditions for which the strike is taking place, or the like.
The working- and wage conditions the cultural employees are on strike for this autumn apply to pensions. The employee side believes that the current defined contribution pension scheme is discriminatory and leads to different pension payments for women and men. They demand that the employer side must stand by a promise of a permanent pension scheme with gender-neutral and lifelong pension benefits. This means that employees can be taken care of in a hybrid pension scheme that contains elements from both the defined contribution pension (during the vesting period) and the defined benefit pension (during the pay-out period).
Employers, for their part, believe that the defined contribution pension scheme they offer their employees today is on a par with the pension schemes in working life generally and takes care of the employers' need for predictability. They also point out that the current scheme ensures good pension conditions for freelancers, who are a large proportion of the workforce in the cultural sector.
2. The effects of the strike
Because the Labour Disputes Act does not set requirements for objectivity, justifiability or proportionality, a legal strike can have major negative consequences. Employers' companies can suffer significant production and turnover losses - in the cultural sector in the form of cancelled performances and lost ticket revenues. The public misses cultural experiences, and groups of workers who are outside the strike lose income.
In the cultural sector, this effect can be particularly strong because many who are associated with a stage production are freelancers, and thus do not have the same safety net as other employees. These negative effects are also what make the strike an effective means of combat: The more burdensome the effects of the strike are on the employer side, the greater the chance for the workers to get through with their demands.
The opportunity for employers to mitigate the negative effects of a strike lies, firstly, in the fact that workers who have not been taken out on strike can still work. This also applies to unorganized as well as hired employees and contractors.
Secondly, the employer can reallocate employees within the framework of the individual employment contract. Here, however, the employer must tread carefully. If other employees are allowed to perform tasks that would otherwise have been performed by those who are on strike, the employer will easily be met with accusations of strikebreaking. Strikebreaking is not regulated in the Labour Disputes Act, but it is generally accepted that strikebreaking is unacceptable and can have legal consequences.
Third, the employer can request exemptions from strikes in the event of danger to life, health or significant property damage. However, such exceptions are not very relevant in the ongoing strike in the cultural sector.
3. The show must go on - or?
In principle, there is no limit to how long a strike can last. When the strike is ongoing, both the parties and the Chief State Mediator can take the initiative to mediate, but this is no guarantee that the dispute will be resolved. The parties have a duty to attend mediation, but they have no duty to agree. If they do not agree, the strike continues.
In some cases, the state can intervene and interrupt the strike with a so-called compulsory wages board. This is a form of compulsory arbitration, where the National Wages Board determines which working and salary conditions shall apply between the parties. Compulsory wages board is a strong interference in the right to strike and can only be used in situations where the strike threatens life and health or vital societal interests. It is therefore difficult to imagine that a compulsory wages board will be a relevant alternative in the cultural strike.
In practice, the strike will thus continue until the economic realities mean that one of the parties has to give up. On the employer side, the economic aspects are dampened by the fact that the cultural institutions are public and cannot go bankrupt. However, these must also consider potentially negative reputation effects.
On the employee side, the decisive factor will be how long the trade union is willing to cover the strikers' wages in order to achieve the working- and wage conditions they are fighting for. During the cultural strike, the workers' side has announced that the strike fund is full and the will to fight is great.
If neither party in the ongoing strike sees any reason to move away from the positions that have been stated publicly, it could be a culture-poor autumn.
