欢迎来到Reed Smith的《全球就业法月刊》博客文章。本月的帖子涵盖了五个主要司法管辖区(法国,德国,香港,英国和美国)员工罢工的合法性。


According to the French Supreme Court, a 合法的 strike action is defined as a collective cessation of work, the purpose of which is to support professional claims. In the private sector, the right to strike, as a constitutional right, cannot be restricted or regulated by a collective agreement or by the employer itself. There is thus no obligation to comply with a specific notice period prior to going 上 strike. Employees, however, must inform the employer of their claims at the time they decide to stop working and go 上 strike.

就业机会contracts are suspended during the strike (i.e., the employees do not perform their duties and the employer does not pay them). Employees 上 strike are protected against any disciplinary sanctions, including dismissals in the sense that any sanctions that may be imposed where there is 合法的 strike action are deemed to be null and void. This protection does not apply when the strike is unlawful (i.e., the action does not support professional claims or where the employees 上 strike prevent non-strikers from working).



In 德国 , a strike is the typical 工业行动 上 the part of the employees and trade unions. To be legal, a strike must meet certain formal requirements and pursue a legitimate purpose. Formally, a strike must be (i) organised by a trade union; and (ii) called following a strike vote conducted according to democratic principles. Therefore, a so-called “wildcat” strike, which is not organised by a trade union, is illegal. Any strike must pursue a legal purpose, which can 上 ly be to change working conditions. Furthermore, a strike must be conducted in a reasonable and 合法的 manner. Therefore, the union may not occupy the premises, call 上 customers of the employer to boycott the product, or prevent employees willing to work from entering the premises and working.

德国政府目前正在提议一项关于罢工权的新法律。目的是防止这样的情况,即只占劳动力一小部分的小工会声称要谈判整个劳动力的集体谈判协议并进行罢工。过去,小而强大的联盟“GVL”代表(几乎是唯一的)德国铁路(Deutsche Bahn)火车司机的罢工。由于其成员结构,这些罢工严重影响了德国的整个铁路运输。 GVL工会还声称对德国铁路的其他雇员(例如指挥)负责。除火车司机外,Deutsche Bahn的大多数员工都是不同工会的成员。 GVL的索赔将导致德国铁路的同类型雇员根据其特定工会会员身份而具有不同的雇用条件。德意志铁路公司正在努力防止这种不令人满意的情况。但是,由于小型GVL工会与火车司机可以组织破坏性罢工,因此其谈判立场非常有限。目前,新法律仍在讨论中。


在香港,结社自由受到《基本法》和《香港人权法案条例》(第383章)的保障(“ 博罗 “)。此外,《工会条例》(第332章)规定了工会会员的权利和义务,而《雇佣条例》(第57章)(“ 环氧乙烷 “)通常可以防止反工会歧视。 《劳资关系条例》(第55章)规管贸易纠纷的解决。 《公共秩序条例》(第245章)(“ 便便 “)如果罢工采取了公共游行的形式,则是相关的。


《基本法》第二十七条保障结社自由和罢工自由。“香港居民享有言论,新闻和出版自由;结社,集会,游行和示威的自由;以及建立和参加工会以及罢工的权利和自由。” 他们根深蒂固的《基本法》表明它们是基本权利。






根据《雇佣条例》,禁止雇主阻止或阻止雇员行使其参加工会活动或参加工会活动的权利。雇主不得解雇,惩罚或歧视行使其权利的雇员。 《雇佣条例》还禁止雇主以雇员参加罢工为由立即解雇雇员。如果员工参加了不合法的罢工,EO会确保在他/她因参加罢工而缺勤的期间保持工作的连续性。


罢工没有法定定义,但为向雇主施加压力而采取的任何一致行动通常可以归为:“industrial action”。工业行动可能包括工人罢工或采取其他行动,例如拒绝加班-这种行动被称为“罢工行动”。有时雇主可能“lock out” its employees and stop them from working or coming back to work during a dispute. There is no right to strike as such, and calling a strike in the UK is in principle unlawful as it amounts to inducing employees to breach their contracts of employment. For this reason, striking or taking 工业行动 has often been described as a privilege rather than a right. However, provided that certain conditions are met, certain legal immunities are available to unions calling for 工业行动, and employees individually enjoy certain protections in the case of such “lawful” 工业行动.


At the moment, in order to proceed with a strike 合法的ly, a union must first give a notification of ballot and provide a copy of the voting papers to the employer no later than a week and three days before the ballot takes place. Every member of the union is entitled to vote and has the right to do so secretly where the conditions are met. Employees have some protection against disciplinary action by their employer as a result of both deciding to vote for a strike and participating in a strike or other 工业行动.


The new Conservative majority government put forward reforms that will see 工业行动 become much harder to execute legally. According to Business Secretary Sajid Javid, these changes will be a priority of the government. The first key change proposed is a new 50% turnout threshold for ballots (no turnout threshold is currently in place). Second, in core public services such as education, health, fire and transport services, 40% of those eligible to vote must support the 工业行动 (at the moment ballots 上 ly need a simple majority). Other proposed reforms include lifting restrictions to use temporary (“agency”)工人来扮演罢工工人的角色。




在美国,《国家劳动关系法》(“NLRA”) guarantees the rights of private sector employees to strike, but also places qualifications 上 the exercise of that right. Determining whether a strike is 合法的 or unlawful under the NLRA is critical in determining the rights of employees to reinstatement after the strike. The 合法的ness of a strike depends 上 the purpose of the strike, its timing, and the conduct of the strikers.