On 9 November 2022, employees of several companies will go on strike. In other companies, employees will not be on strike, but even these companies will feel the impact of the union actions. Here are some tips and tricks for employers:
As an employer, do I have to pay salary if public transportation is on strike and Peter does not get to work?
In principle, salaries remain due when an employee's delay or absence is not due to the employee himself. However, this requires that the employee attempts to travel to work as he would do on any other day. In addition, the cause of the delay or absence must have occurred at the time the employee is on his way to work. In other words, if the strike was already announced and therefore foreseeable, no salaries are due.
In addition, no salaries are due if public transportation was not the only option for the employee. Only if other options such as other means of transportation or carpooling are also impossible for the employee, the employee will be entitled to his normal salary. It is not enough that it is difficult to get to work. It must be truly impossible.
Given that the 9 November 2022 strike was announced a very long time in advance, no salary will be due if the employee does not show up to work (and does not work from home).
What if Peter could get to the workplace by foot, but he still remains absent because of the closure of the daycare of his child?
If Peter can get to work by feet, the public transport strike does not prevent him from getting to work. However, if he has to take care of his children, because the daycare is closed, then he can claim leave for compelling reasons (family leave). He will then not be entitled to salary unless otherwise agreed upon.
If Peter has already taken more than 10 days of family leave (and thus additional leave is no longer an option), then it is also possible to take vacation days or agree on authorized (unpaid or paid) absence.
What if Peter himself participates in the strike?
If he is a member of a trade union and it is a strike in the company, he is entitled to a strike allowance at the expense of the trade union. The condition is that the strike is recognized by the trade union concerned.
In the case of a strike outside the company, no salary is due either, but then temporary unemployment due to force majeure will apply, which entitles the employee to unemployment benefits (if the necessary formalities are completed).
May I employ temporary agency workers to cover the shortage of employees? may I use a temporary agency worker to replace peter on strike?
During a strike, temporary agency workers may not be used to replace the striking employees. The term strike as well as the resulting prohibition of employment is interpreted broadly. Strikes following national actions are also covered by the prohibition.
However, recent case law increasingly takes the position that the prohibition of employment is not a general prohibition. In particular, a distinction must be made between temporary agency workers who were already employed by the user before the strike notice and those who are only deployed after this notice. This is because the first group is not employed to break the strike or neutralize its negative effects, whereas the second group is. Therefore, the employment of the first group is seen as less problematic than the employment of the second group.
What can I do if Nathan and Frederik block the access to the company?
In the event of a blockade, proceedings may be brought before the president of the court of first instance. This can be done by means of a unilateral petition, requesting that the blockade be prohibited under forfeiture of a penalty payment. This is possible in high-pressure situations.
Kris De Schutter - Partner
Anke Istace - Associate
Charlotte Pauwels-Devillé - Associate