Legal Eye: The subtle art of striking

In addition to the usual candidates, doctors and teachers have recently decided to use this form of protest. Although popular, the right to strike and strike procedures are subject to a myriad of rules.

Right to strike

It may come as no surprise that the Polish Constitution protects the right to strike. The Constitution, however, also permits the passing of laws to restrict or prohibit strikes with respect to certain categories of employees or in certain fields, if necessary for the public good. Poland has not enacted any laws that would specifically restrict the right of doctors to strike.  But other crucial public-sector personnel, such as prison guards, police, court employees, fire-fighters and customs agents, are not permitted to strike. 

Before walking out

Before you or your employees decide that organizing a strike would be a good way to liven up a Monday morning, you must remember that certain steps must be followed before walking out. As a starting point, the employer must receive the employees' demands. These demands must relate to working conditions, wages, social benefits, and/or union rights and liberties. The strike may not be in protest of the G8 summit or the actions of a particular minister. If the employer does not meet the demands in the time period specified, which can't be less than three days, a collective dispute has begun.

The following steps in a collective dispute are negotiations and mediation. In negotiations, the employer and employees attempt to resolve the differences by themselves. Mediation involves bringing in a hired expert to do so. If both of these steps fail, the strike may begin. The law contains minimum time periods to allow attempts at talking or at least cooling down before a strike is called. The minimum period from submitting demands to the start of a strike is 14 days.

Warning and real strikes

Before the real walk-out begins, one more step may be taken to show the seriousness of intentions - a warning strike. Most recently, teachers staged a warning strike. This type of strike may only be organized once and only for up to two hours.

Trade unions start a strike, but all employees (whether union members or not) have a right to vote on striking. Even if the vote passes, however, it's up to the individual employees as to whether or not they want to participate. 

For those who hope for some statutory help in bringing the doctors' strike to an end - no such luck. There are no limits on how long a strike may last.

Doctors' dilemma

Even though they may strike, doctors have ethical obligations about providing healthcare. Strike or no, doctors must provide emergency care and care in situations where failure to do so could threaten life or cause serious injury. In fact, some have argued that doctors should not have the right to strike. As an example, the European Convention on Human Rights specifies a right to strike, but allows countries to limit this right, including with respect to healthcare. To date, Poland has not statutorily limited doctors' right to strike. And, it appears that doctors are attempting to walk that thin ethical line of providing absolutely necessary care, while on strike.

Judith Gliniecki is a partner with Rymar and Partners j.gliniecki@rymar.pl