Althoughthe weather was cold in the first month of 2024, there had been heateddiscussions on the Internet and social media about a strike planned by thepilots of a certain airline, potentially affecting people's travel plans.Although the strike turned out to be cancelled, it has sorely reminded businessesto be careful when facing strikes in order to minimize the possible damage tothe company and maintain the rights and interests of all parties concerned. Thefollowing is a brief introduction of some noteworthy matters when a companyencounters a strike to facilitate a quick response to the situation.

■The strike needs to be lawful.

Accordingto the labor laws in Taiwan, a strike must be initiated by a labor union andapproved by a majority vote through secret ballots. It cannot be initiated by individualworkers. In addition, a strike can only be initiated in relation to interests disputes(i.e., matters that can be adjusted by means of the employer’s guidelines orstrategies of operation, e.g., salary adjustment, bonus distribution, andadjustment of working hours, etc.), but not rights disputes (i.e., disputes overthe rights and obligations between the worker and the employer that have beenstipulated by the law, e.g., the validity of a labor contract, whether or notan employee may be disciplined according to the work rules, etc.).

Inaddition, if a strike is deemed necessary in industries such as water, electricity,hospitals, communications, and financial payments, which are essential topeople's livelihood, the laborers and management are required to stipulate essentialservices clauses. In addition to submitting the stipulations to the competentauthorities for records, they also need to maintain certain basic services. Strikesare not permitted in the event of a major catastrophe. Moreover, teachers andstaff of schools (education-related) and employees of institutions related tothe Ministry of National Defense (MND), are not allowed to strike due to theneed to protect the right to education and national security.

As forthe means of strike, although the means that laborers may use against theenterprise may or will definitely affect the rights and interests of third parties(e.g., stopping railroad trains or airplane flights which would causepassengers to change to other modes of transportation or canceling theirtrips), it is still necessary to pay attention to the appropriateness of themeans so as to avoid excessive and irreparable damage to third parties or thepublic. That is, it is more appropriate to adopt such means as passivenon-attendance (in order to avoid affecting the company's operation throughactive means), setting an appropriate time to announce the strike (in order toallow the affected parties to have the time to cope with the situation), arrangingguides to direct traffic where a picket line is set up (in order to avoidinterfering with the operation of the company and the traffic, etc.).

■Obligations of the company during a strike

Whilea labor union may try its best to strike lawfully and appropriately, damage tothird parties or the public may still be unavoidable. Before a consensus isreached between the labor union and the company, the company should try its bestto prevent damage from occurring or expanding and should not use unjust meansto restrict or impede the labor union's strike.

Duringa lawful strike, if workers refrain from providing services to the companybecause of their participation in the strike, the company may be exempt frompaying wages to the workers during the strike. However, it is not permitted toimpose any penalties against the workers for their participation in the strike.Despite not providing services during the strike, the workers' labor contracts withthe company are still valid during that period. Thus, in addition to the factthat their years of service should continue to accrue, the company should also continueto make contributions to the workers’ labor insurance, health insurance, andpension during the strike, so that their legal rights and interests may beprotected.

■Measures that can be adopted by businesses during a strike

Firstof all, if a strike is clearly unlawful and the strikers have committedimproper acts that would cause an imminent danger to the life, body or healthof others, or irreparable damage of the like, the employer may apply to thecourt for a provisional injunction to maintain a temporary status quo, askingthe court to forbid the union from striking in order to prevent an imminentdanger or material damage to the public due to the unlawful strike of the laborunion.

Inaddition, if a union's strike causes or threatens to cause injury to the lifeor body of another person through the use of coercion or duress, both the unionand the individual who commits the coercion or duress may be held criminallyliable for the offense. In this case, if an individual who is a member of alabor union is criminally liable for their actions, the labor union they belongto will also be liable to pay a fine as a result of the criminal liability ofthe member of the labor union.

If alabor union's unlawful strike causes damage to a company (e.g., failure toprovide service resulting in disruption of operations, damage to companyequipment, etc.) or damage that a company has to bear to a third party (e.g.,the company's inability to fulfill its obligations to creditors resulting innon-performance of its obligations, etc.), the company shall be entitled tofile a claim for civil damages against the labor union for the aforementionedinjuries.

Insummary, businesses should pay attention to the lawfulness of the union's actsduring strikes, and deal with lawful or unlawful strikes in a timely andappropriate manner respectively. In doing so, a balance between the interestsof the workers and those of the company may be reached, and the rights andinterests of third parties may be protected as well. This is also the highestobjective in promoting the stable operation of business, which should deserveour continuous attention.

This article waspublished in the Expert’s Commentary Column of the Commercial Times. https://www.ctee.com.tw/news/20240220700113-439901

‍