Chapter 3

Europe

Like in Israel, the law in many European countries adopts in general a liberal approach to employees’ strikes but imposes certain restrictions on a stoppage of services that are regarded as ‘essential’ — including in the medical field. Thus, for example, Belgium, the Czech Republic, Estonia, Greece, Hungary, Ireland, Italy, Malta, Romania and Slovenia impose statutory restrictions on the right of physicians to strike.¹

First and foremost, these are procedural restrictions that are also reminiscent of the statutory requirements in Israel. For example, in France the physicians are required to give a fifteen day warning before a strike and in Belgium they must give two weeks’ notice.² In Lithuania, the warning period required is twice as long as in other industries.³

Insofar as substantive restrictions are concerned, in England the employers’ organizations and the trade unions in the public sector have the habit of holding collective negotiations. England does not have a written constitution, and therefore the right to strike is granted by virtue of statutes and regulations. Thus, for example, the European Charter of Human Rights is incorporated in the laws of the State by virtue of the Human Rights Act of 1998.⁴ Section 11(1) of the law states:

‘Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.^’5

Many regard this section as a statutory source for the right to strike, even though it does not mention it expressly.⁶

The Trade Union and Labour Relations Law of 1992 imposes restrictions on organizational measures in order for them to be regarded as legal. Sections 226-235 of the Law requires trade unions to hold a secret ballot among its members in order to obtain their consent to take industrial action, and to give notice of this to the employer. ⁷ Currently the English statute does not specifically address industrial action in the healthcare services or in essential services.

In Belgium, the constitution enshrines the right to collective bargaining and, as a part thereof, also the right to strike.⁸ However, the Essential Services Law requires the medical industry to continue to provide services even in the event of a strike in accordance with decisions made by joint committees of employees and employers.⁹

In Cyprus, there has been a right to stop essential services since 2004, when the Government, the trade unions and the employers signed an agreement that brought an end, inter alia, to the prohibition against strikes by essential employees, which had been in force until that time.¹⁰

In Holland, the law permits essential workers to strike, provided that third parties do not suffer as a result of the strike.¹¹ In practice, prolonged strikes in the army, the legal system and the prisons are unacceptable, but there is no absolute and formal prohibition that prevents employees in these sectors from striking.¹² With regard to physicians, the Supreme Court of Holland has held that even when there is a strike in healthcare services, care should be taken to provide services on a minimum level.¹³

In Norway, there is no specific reference in the law to strikes in the healthcare services. In practice, strikes held by physicians and nurses — the most recent of which was in 2010 — ended with the parties being referred to arbitration.¹⁴

The United States

The National Labor Relations Act, which was enacted in 1935, guarantees employees the right to form unions and to conduct collective bargaining.¹⁵ In view of the fact that the American health system is mostly private, it has very few strikes in this industry, and there is no legislation that specifically relates to it.

Canada

Industrial action in the Canadian health system is not rare. The law that relates to it varies between the provinces. In some of them the law restricts the right to form unions, to hold collective bargaining and to strike, especially in the public sector. Thus, for example, nurses and paramedics in British Columbia lost the right to strike, when in 2001 a law that was enacted prohibited it, and a collective ‘agreement’ was forced upon them by legislation.¹⁶ Another example of restrictions upon strikes can be found in Ontario, where legislation relating to employment relations does not allow physicians, like lawyers, dentists, farmers and additional professionals, the right to strike.¹⁷ In provinces where physicians are permitted to strike, the legislature’s approach to the supply of emergency healthcare services during a strike varies: in some the law gives details of how these services should be provided, and in others it does not address this. In any case, trade unions and employers conduct negotiations with regard to the manner of providing these in all the provinces.¹⁸

Australia and New Zealand

Strikes in Australia are controlled both on the Federal level and on the State or territory level. The Australian Industrial Relations Commission (AIRC) has the power to determine a limited time for conducting negotiations, and even to suspend the right to strike insofar as essential services are concerned. The legislatures of New South Wales and Victoria have also enacted laws that restrict the right to strike in these services. As a rule, the supply of emergency healthcare services in Australia is guarantees even during physicians’ strikes.¹⁹

In New Zealand, the Employment Relations Act of 2000 imposes certain limitations on industrial action in emergency services. According to the law, if a planned strike is likely to affect the public interest (including public security and health), then a written warning of the intention to strike should be given to the employer and to the chief executive of the Department of Labour.²⁰ In the specialist physicians’ strike of 2008, for example, each senior physician was given the work load of two specialists, in order to ensure that the supply of healthcare services during the strike would not be affected.²¹

Only recently the court in Papua New Guinea declared that the physicians’ strike that broke out in the country in March this year was illegal, and it ordered that it should be stopped, after it held that the strikers did not carry out all of the proceedings required in order to take industrial action. Despite the court’s decision, the physicians’ union continued the strike. As a result, its leaders were arrested by the police and charged with contempt of court, and the strike came to an end.²²

    ¹European Foundation for the Improvement of Living and Working Conditions, Employment and industrial relations in the health care sector, http://www.eurofound.europa.eu/docs/eiro/tn1008022s/tn1008022s.pdf, last accessed 29 May 2011.

²    European Foundation for the Improvement of Living and Working conditions, Employment and industrial relations in the health care sector, http://www.eurofound.europa.eu/docs/eiro/tn1008022s/tn1008022s.pdf, last accessed 29 May 2011.

³    Dr. Tomas Davulis, National Labour Law Profile: Lithuania, International Labour Organisation, July 2004. 

⁴    Human Rights Act 1998, http://www.legislation.gov.uk/ukpga/1998/42/contents, last accessed 13th June 2011.   

⁵    The European Convention on Human Rights, article 11(1), 3/9/1953.

⁶     Sonia McKay, ECHR upholds right to collective bargaining and to strike, European Industrial Relations Observatory on-line, January 15, 2010.

⁷    Trade Union and Labour Relations (Consolidation) Act 1992, http://www.legislation.gov.uk/ukpga/1992/52/part/I/chapter/V, last accessed June 13, 2011.

⁸    The Belgian Constitution, Article 23(1), JANUARY 2009, BELGIAN HOUSE OF REPRESENTATIVES, D / 2009 / 4686 / 08.

⁹    The Essential Services Law, 1948.

¹⁰   Eva Soumeli, Agreement regulates settlement of labour disputes in essential services, European Industrial Relations Observatory on-line, 21 April 2004, CY0404103F.

¹¹    Sarah Rook, George Rodenhuis, Wouter Kortooms and Annika Blanke, The Right to Strike: A Comparative Perspective. A study of national law in six EU states, pages 80-95, The Institute of Employment Rights, www.ier.org.uk.

¹²   F. Dorssemont, T. Jaspers and A. van Hoek, Cross-Border Collective Actions in Europe: A Legal Challenge, Intersentia, 2007.

¹³   Ibid.     

¹⁴   Norway Mandatory Arbitration Health, European Industrial Relations Observatory On-Line, http://www.eurofound.europa.eu/eiro/studies/tn1008022s/no1008029q.htm last accessed May 31, 2011.

¹⁵   National Labor Relations Act 1935, Title 29, Chapter 7, Subchapter II, United States Code.

¹⁶   Annual Survey of Violations of Trade Union Rights, International Trade Union Confederation, 2007.

¹⁷   Ibid.

¹⁸   Larry Haiven and Judy Haiven, The right to strike and the provision of emergency services in Canadian Health Care, Canadian Centre for Policy and Alternatives, December 2002.

¹⁹   Colin Fenwick, Senior Lecturer, Centre for Employment and Labour Relations Law School, University of Melbourne, Victoria, Australia and Jane Hodges, National Labour Law Profile: Australia, 2002, International Labour Organisation.

²⁰   Employment Relations Act 2000 No. 24 (as of April 1, 2011), http://www.legislation.govt.nz/act/public/2000/0024/latest/DLM59985.html?search=ts_act_employment+relations+act_resel&p=1, last accessed June 14, 2011. 

²¹   Robinson G., McCann K., Freeman P., Beasley R., The New Zealand national junior doctors’ strike: implications for the provision of acute hospital healthcare services, 2008 Jun;8(3):272-5.

²²   PNG Doctors’ Strike Ends, Union Leaders Arrested, Radio Australia, March 31, 2011, http://pidp.eastwestcenter.org/pireport/2011/April/04-04-02.htm.

In recent years, physicians’ strikes have become more and more common around the world. Thus, for example, in the past decade physicians’ strikes have taken place, inter alia, in Australia, Bulgaria, the Czech Republic, France, Germany, Greece, India, Luxembourg, Malta, Nigeria, Portugal and Slovenia, against a background of the increase in the amount of physicians that are members of trade unions around the world¹ and the physicians’ decreasing satisfaction with their conditions of employment in the profession (including with regard to issues relating to the burden of work, low salary, etc.).²

Thus, for example, in France surgeons declares a strike in 2004 in order to struggle for an improvement in conditions and an increase in the amount paid for surgery — a rate that had not been revised for 15 years. The physicians also threatened to leave France in order to prevent an order being made against them to return to work. Ultimately, an agreement was signed before the surgeons left the country. The agreement included an improvement in the employment conditions of surgeons — including an improvement in the condition of operating theaters — and an increase in the remuneration of the surgeons, including a supplement for being on-call.

The following table describes the main physicians’ strikes that took place around the world in the last two years.

Physicians’ Strikes around the World, 2010-2011

¹    L.P. Landry, Organized medicine must assume a leadership role in protecting Canada's health care system, CMAJ 1993 December 1; 149(11): 1720–1722.   

²    Nigel Edwards, Mary Jane Kornacki, Jack Silversin, Unhappy doctors: what are the causes and what can be done? BMJ 2002;324:835–8; Janice Hopkins Tanne, US GPs are Unhappy, Underpaid, Deluged by Paperwork, and want to retire, study says, BMJ 2008; 337:a2711; Frank Frizelle, Is it Ethical for Doctors to Strike? The New Zealand Medical Journal, 23 June 2006, vol. 119, no. 1236.

Research shows that physicians strike for two reasons: a struggle over employment conditions and concern for the welfare of patients.¹ As this research shows, the borderline between the two reasons tends to be unclear and often it is difficult to identify precisely where the physician’s interests end and the patient’s interests begin. In practice, there is a reciprocal relationship between these two purposes: insofar as the system provides better conditions for the physician, it advances the welfare of the patient, and vice versa.² Indeed, since the 1970s several incidents have occurred around the world in which physicians’ strikes led to policy changes that went beyond an improvement in the physicians’ employment conditions and led to advances in the welfare of patients.

For example, in Cook County in Chicago five hundred medical staff at the hospital went on strike for 18 days in 1975. It was one of the longest physicians’ strikes in American history. The reasons why the strike broke out were a dissatisfaction of the medical staff with the quality of the treatment and the work conditions in the hospital. The strike ended following an agreement between the management and the staff to set up a joint committee to monitor an improvement in patient treatment, including an increase in the number of medical teams, faster receipt of laboratory results and X-rays images, and the fixing of a maximum amount of weekly work hours for an attending physician in an institution (80 hours).³

In New York the interns in two hospitals declared a strike to improve their status in May 1976. After they achieved an increase of 10.5% in their salary, the interns decided to contribute half of the increase to a joint fund that they established in order to improve the quality of the treatment in the hospital by means of buying medical equipment and employing essential manpower.⁴

In Rhode Island the Medical Association initiated in May 2003 a march with the purpose of directing public attention at the problems of access, insurance coverage and obstacles to an improvement in the quality of treatment in the health system. Some additional medical employees, patients and legislators took part in the march. The media campaign that accompanies the march focused on the financial pressure on the system, which threatened the physician-patient relationship.⁵ This protest was supported by the medical establishment, because it was intended to strengthen the whole medical system, and thereby first and foremost benefit patients. This occurred only one month after the American Medical Association and the Medical Association of the State of Illinois refused to support the strike that was carried out by hundreds of physicians in the State for one day in protest at their problems in the field of professional liability insurance. The Medical Associations explained their opposition to the strike on the ground that the issue of insurance was admittedly important, but did not justify causing harm to patients.⁶

In France the Prime Minister, Alain Juppé, announced in 1995 a reform in the health system. The reform was intended to put restraints upon national spending for healthcare, mainly by restricting the professional autonomy of physicians by means of budgetary supervision. The Government’s intention was to allocate to each district in France a certain amount for healthcare services, which included payments for medical treatments and prescription drugs, which permitted no departure. A departure from the approved amount would lead to a ‘fine’ that would be imposed on physicians in the district. This far-reaching measure, which was regarded as a threat to the French healthcare system, met with fierce opposition from physicians, who began an extensive struggle in order to cancel it, or at least to moderate it. Within the framework of the struggle, which continued during the years 1995-1997, and which included strikes and other industrial action, the physicians repeatedly claimed that ‘the Government was compelling them to replace the stethoscope with the calculator,’ and thereby it harmed their ability to provide the best healthcare to the citizens of France. They saw it as a flagrant intervention of the sovereign in the relationship between a physician and his patient, which compelled the physician to introduce the economic criterion into the set of medical criteria that are taken into account during the treatment.⁷ Within the framework of the struggle, the hospitals were shut down for periods of time, elective treatments were postponed and demonstrations were held, with thousands of physicians participating in main cities.⁸

In May 1997, under the shadow of the mass demonstrations, general elections took place in France, in which the Government’s plan was put to the test. The incumbent Government was defeated and replaced by the socialist Government of Lionel Jospin. The new Government admittedly remained committed to its predecessor’s efforts to restrict health spending, but at the same time the implementation of one of the main and most problematic elements of the planned reform — the imposition on the physicians of a predetermined and limited budget, with a threat of economic sanctions if it was exceeded — was rejected.⁹ The main medical association (the Confederation of French Medical Unions — CSMF) had, over the years, remained steady in its refusal to recognize this clause, and therefore it had also not been subsequently implemented.¹⁰ Thus, the State’s attempt to impose a mechanism that made the writing of drug prescriptions subject to budgetary restrictions failed, and it was de facto abandoned by the French Government in 2000.¹¹

In Luxembourg physicians and dentists stopped providing healthcare services during 2010 as a result of the Government plan to reduce the budgets of the hospitals. Following the struggle, the Government held negotiations with the physicians’ representatives, which led to a settlement that moderated the original reform.¹²

In Britain, the Government announced at the beginning of 2011 a wide-ranging plan to reform the National Health Service (NHS), whose purpose was a fundamental change of the structure of healthcare services in the country. The plans included far-reaching steps that were intended to advance the privatization of the National Health Service by creating competing markets between healthcare providers, including between private clinics and commercial companies. The physicians in Britain regard this plan as a serious threat to the healthcare system, and it announced that it would not accept these measures. The British Medical Association (BMA) announced in February that it was not impossible that it would declare a strike in order to stop the planned reform.¹³

In Greece, thousands of physicians and additional healthcare workers stopped the healthcare services in the country for several days beginning in March 2011 in protest at budgetary cuts and privatization measures that the Government tried to promote in the national health system.¹⁴ They also clashed with the police in stormy demonstrations that took place recently in Athens. The physicians’ struggle in Greece is a part of the public protest that is spreading in the country against the severe cuts in the public service that the Government is promoting in order to contend with the economic crisis.¹⁵

These examples illustrate that it is not really possible to separate the purposes of physicians from the welfare of patients, since they are united by the concern for a strong and functioning healthcare system. By exerting pressure on decision makers and employers, physicians in various countries are succeeding in increasing the resources devoted to the system, and thereby in improving the quality of treatment and service, and even preventing reforms that may undermine healthcare services for reasons of budgetary savings.

¹    S.L. Thompson and J.W. Salmon, ‘Strikes by Physicians: A Historical Perspective toward an Ethical Evaluation,’ International Journal of Health Services 36, no. 2 (2006): 334-335.

²    Ibid.

³    Ibid., at pages 337-338.

⁴    Ibid.

⁵    The American College of Physician's Ethics and Human Rights Committee and the Center of Ethics and Professionalism, Physician work stoppages and political demonstrations – economic self-interest or patient advocacy? Where is the line? 2-3.       

⁶      P. Maguire, Doctors struggle to balance professionalism with the pressures of everyday practice, 2003.

⁷    P.C. Sorum, ‘Letter from France: Striking Against Managed Care,’ Journal of American Medical Association, 280, no. 7 (1998): 662-663.

⁸    Inter alia, some of the strikers took part in exceptional action that went beyond the normal course of the struggle, such as throwing half a ton of fertilizer in front of the National Insurance Institute, breaking into the television studios in five different cities, while disturbing the broadcasting of the news program and covering the house of one of the union chiefs who opposed the struggle with false bills of money.

⁹    Sorum, at page 664.

¹⁰   The European Observatory on Health Systems and Policies, Health Care Systems in Transition: France, 2004, at pages 12, 17.

¹¹   The European Observatory on Health Systems and Policies, Health Care Systems in Transition: France, 2010, at page 200.          

¹²   352luxmag, ‘Doctors’ strike in Lux ends early,’ November 25, 2010. http://www.352luxmag.lu/?p=edito&a=external&id=90577 [accessed on June 16, 2011].

¹³   J. Laurance, ‘Doctors threaten to strike as anger grows over NHS reforms,’ The Independent, February 3, 2011.   

¹⁴   EUbusiness, ‘Greek doctors strike against revamp,’ February 7, 2011.  http://www.eubusiness.com/news-eu/greece-government.8ic  [Accessed on June 16, 2011].

¹⁵   Desert News, ‘Greece: Police clash with striking doctors,’ May 6, 2011.