The strike is a fundamental right of employees, and although it is an important tool to protect the rights of employees, the strike must not interfere with the normal functioning of the economy or essential public services.

The strike consists in the voluntary and collective suspension of activity by the employees, and the participation of the employees in the strike is a free right, without constraints. No employee may be forced to participate or participate in the strike.

Limitation or prohibition of the right to participate in the strike is possible only in the cases and for the categories of employees expressly specified by law.

Employees who do not participate in the strike will normally continue their work and employees on strike must refrain from any act likely to prevent the continuation of activity by those who do not participate in the strike.

During the strike, the employer cannot be prevented, under any circumstances, from carrying out his activity by the employees participating in the strike or by its organizers. The employer is forbidden to hire staff in order to replace the employees on strike.

The strike can be declared only if the mandatory procedures for solving the collective labor conflict, after the warning strike, have been exhausted in advance, and provided that the moment of triggering it was brought to the attention of the employer by the organizers with at least 2 working days before.

Under the constitutional provisions and the Labor Code, the right to strike cannot be waived by collective or individual labor contract. Any contractual clause having as its object the waiver of this right is void.

If, after the strike, more than half of the employees who voted to trigger the strike withdraw their membership in writing, the strike ceases.

Any withdrawal of an employee from the strike must be communicated in writing individually to both the strike committee and the employer.

The strike committee shall forward the notification of the abandonment of the strike to both the employer and the Territorial Labor Inspectorate.

According to Article 160 of Law no. 367/2022, during the entire duration of the participation in the strike, the individual labor contract or the service report is suspended on the initiative of the employee. During the suspension, the health insurance rights are maintained exclusively and will not benefit from the salary rights.

However, the High Court of Cassation and Justice has solved a legal problem regarding the effects of employee participation in the strike. By the pronounced decision, it was established that the employee’s accession to the strike has the effect of the rightful suspension of the individual labor contract, without the need to formulate an express request or to fulfill other formalities, suspension that subsists exclusively during the strike.

The decision requires employers to record rigorously all employees participating in the strike, as well as the exact period of their participation. This record is necessary not only for the observance of internal procedures, but also to ensure a correct reflection of the salary rights and other rights provided by law, during the suspension of the individual labor contract.

Thus, when an employee joins the strike, his individual labor contract is suspended by law, without fulfilling other formalities and the employer is not obliged to pay salary rights.

Author: Atty. Felicia Cioflan