When can a warning strike be organized?
A warning strike consists in a short-term refraining of employees from work, no longer than 2 hours. It can only be organized in certain situations.
Based on Article. 12 of the Act of 23 May 1991 on resolving collective disputes, trade union organizations that conduct a collective dispute have the right to organize a one-off strike action in the form of a warning strike. A trade union organization may not only carry out a warning strike only once, but also it may be carried out only during mediation proceedings organized for the purpose of a peaceful settlement of a collective dispute. A warning strike cannot last longer than 2 hours.
A warning strike may be organized only if the trade union conducting the collective dispute decides that the course of mediation proceedings does not indicate the possibility of resolving the collective dispute before the expiry of 14 days from the date of filing the collective dispute or before the expiry of the period for which the trade union organization agreed to the request mediator to postpone the strike of which she had warned the employer.
According to Art. 12 of the Act of May 23, 1991 on resolving collective disputes, organizing a warning strike is possible only when the organizer of the strike has a „reasonable assessment” that the course of mediation proceedings will not lead to a resolution of the dispute before the expiry of the deadlines set by the trade union on the basis of provisions article 7 sec. 2 and Art. 13 sec. 3 of the act.
An important problem in the case of organizing a warning strike is the method of verifying the legitimacy of the assessment made by the organizer of the strike. According to Art. 26 sec. 2 of the Act introduced criminal liability for organizing a strike contrary to the provisions of the Act. article 12 gives rise to different interpretations of the factual situation.
For this reason, each case of organizing a warning strike must be considered individually on the basis of its facts (although it is not always possible to clearly determine whether a given dispute had a chance to end in a timely manner or not).
When assessing the legitimacy of organizing a warning strike, the court will be obliged to assess the behavior of the parties to the collective dispute. This behavior of the parties during the mediation process mainly proves the possibility of ending the dispute on time.
The main idea behind the warning strike is to make the employer aware that the trade union organization opposes actions aimed at postponing the settlement of a collective dispute, undertaken by the employer, mediator or other entities that are involved in resolving the dispute.
Despite the lack of an explicit reference in Art. 12 to the provisions of art. 17-21 of the Act, it should be recognized that the provisions of Chapter IV apply to the warning strike, otherwise it is difficult to talk about the possibility of verifying the legality of this strike. Nevertheless, it should be noted that if the legislator wanted to apply the provisions of Chapter IV to a warning strike, he would introduce such a reference, as he did in the case of a solidarity strike under Art. 22 of the Act. Such an interpretation indicates a kind of error of the legislator.
Nevertheless, the provisions regulating strike organizations in Chapter IV as regulating strike institutions should apply to all types of strike provided for in the Act, regardless of the circumstances whether the provision establishing a „special” strike refers to Chapter IV or not.
Legal basis: Act of 23 May 1991 on resolving collective disputes.
Supported by Norway through Norway Grants 2014-2021, in the frame of the Programme “Social Dialogue – Decent Work”.