Reference decision: cc • No. 11-18.404 • 2012-07-04 • View the decision →
Imagine the scene: you live in Biscarrosse and every morning you take the bus to get to work in Mont-de-Marsan. This morning, no bus. A strike notice has been filed by the CGT union. You wait, you grumble, but finally, after an hour, a bus arrives. The driver tells you the strike is over. But who made this decision? The employer? The union?
This seemingly simple question gave rise to an important decision of the French Supreme Court (the highest French judicial court) on 4 July 2012 (No. 11-18.404). The answer is clear: only the union that filed the strike notice can decide the end of the strike. The employer cannot, on its own, consider the strike over because employees have returned to work.
But what does this actually change? Why is this decision important for transport users, employers and employees? Let us dive into the facts and the judges' reasoning.
The facts: a story like many that happen every day
It all starts in Bordeaux, but the case could have happened in Saint-Paul-lès-Dax or Biscarrosse. The CGT Transport Kéolis Bordeaux union files a strike notice on 29 October 2008, for a period of two months (until 29 December). The notice mentions a strike start on 3 November at 10 am, but without specifying the end time. The employer, Kéolis Bordeaux, challenges the validity of the notice before the lower court of Bordeaux. Its argument: the notice must indicate the end time to be valid, and the two-month duration is too long, which paralyses the public service.
The union, for its part, argues that the notice is valid: it mentions the start time, and the two-month duration is necessary to allow negotiations. The lower court rules in favour of the employer in November 2008, but the Bordeaux Court of Appeal, on 3 May 2011, overturns this decision (i.e., it annuls it and holds the notice valid). Kéolis appeals to the Supreme Court.
The Supreme Court must rule on two questions: 1) Must the notice mention the end time of the strike? 2) Can the employer unilaterally decide that the strike is over if employees resume work?
Twist: the Supreme Court delivers two decisions on the same day. In the decision we are analysing, it answers the second question. In another decision (No. 11-17.924), it answers the first. Here, we focus on the question of the end of the strike.
The court's reasoning — explained
The Supreme Court first recalls the principle: the right to strike is an individual right (each employee freely decides whether to participate). In public services (transport, electricity, etc.), the exercise of this right is governed by a strike notice given by a representative trade union. This notice must mention the start and end time of the work stoppage.
But note: employees, who alone hold the right to strike, are not required to stop work for the entire duration indicated by the notice. In other words, an employee may strike for one hour, then resume work, even if the notice provides for a two-month strike.
What few people know is that the employer cannot, during the period defined by the notice, infer from the absence of striking employees that the strike is over. The decision to end the strike can only be taken by the representative trade union(s) that filed the notice.
In clear terms, the Bordeaux Court of Appeal was correct: the employer cannot unilaterally declare the strike over. Only the union can decide the end of the movement.
The legal basis: Article L. 2512-2 of the French Labour Code (which governs strike notices in public services) and the principle of trade union freedom. The Supreme Court confirms consistent case law: the notice creates a framework, but does not oblige employees to fully adhere to it.
The employer's arguments (which sought to be able to note the end of the strike) were rejected. The Court considers that this would amount to denying the role of the union and allowing the employer to bypass collective bargaining.
What this means for you — in practice
If you are a transport user (like many in Saint-Paul-lès-Dax or Biscarrosse): this decision does not change your daily life, but it explains why buses can be irregular during a strike notice. The employer cannot force employees to work. But it gives you a right: if the strike lasts too long, you can demand a minimum service guarantee.
If you are an employer (for example, a transport company in Mont-de-Marsan): you must respect the strike notice until the union lifts it. You cannot, even if all your employees are at work, consider the strike over. Under penalty of what? If you impose sanctions (salary deduction, suspension) for not striking, you risk being condemned for infringement of the right to strike.
If you are an employee: you are free to strike or not, even during a strike notice. But be careful: if you strike, you lose your salary for the hours not worked. And if you do not strike, you must work normally, unless the employer closes the business (which is rare).
Concrete example: in Biscarrosse, a bus driver earning €2,000 per month who strikes 2 hours a day for a week will lose about €250 (based on a 35-hour week).
If you are a union: you must draft a precise notice, with start and end times. But you can modify or withdraw it at any time.
undefined, I have encountered cases where an employer sanctioned employees for not striking, believing the strike was over. The employer was ordered to pay damages.
How to react? If you are an employer, do not take unilateral decisions on the end of the strike. Contact the union. If you are an employee and the employer sanctions you, bring the matter before the employment tribunal.
Four tips to avoid this type of dispute
- For employers: never unilaterally decide the end of the strike. Even if all employees are working, wait for the union to officially lift the notice. Send a registered letter to the union asking for confirmation of the end of the strike.
- For unions: draft a precise notice. Mention the date and time of start AND end. If you do not know the duration, use a phrase like "until further notice" or "for an indefinite period", but be aware that this may be challenged. Include a revision clause.
- For employees: document your participation. If you strike, note the hours and dates. If you do not strike, keep a record of your presence (badge, attestation). This will protect you in case of a dispute.
- For users: inform yourself. Check transport operators' websites for strike notices. If the strike disrupts your journeys, request compensation (refund, subscription). If the minimum service is not respected, contact the mediator.
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Further details: related case law and developments
This decision is part of a consistent line of Supreme Court case law. Already in 2006 (decision No. 04-45.214), the Court had ruled that the employer cannot impose an end to a strike. In 2015 (No. 13-25.220), it specified that the strike notice must be filed by a representative union, but that non-unionised employees can also strike without a notice.
The trend is clear: judges protect the right to strike and the role of unions. They refuse to allow the employer to bypass the strike notice.
For the future, this case law could be challenged if the legislator strengthens the minimum service (law of 21 August 2007). But for now, the rule remains unchanged.
What to remember: the strike notice is not a contract, it is a framework. The union remains in control.
In practice: what to do
FAQ:
- Can I be sanctioned if I do not strike during a strike notice? No. You have the right to work. The employer cannot sanction you for that.
- Can the employer force me to strike? No. Striking is a right, not an obligation.
- What if the employer declares the strike over and sanctions me for not striking? Bring the matter before the employment tribunal within 2 years. You can claim damages.
- Can a strike notice last several months? Yes, if it is valid. But a judge may find it abusive if it paralyses the public service.
- How do I know if a strike notice is valid? It must be filed by a representative union, mention the start and end time, and be notified to the employer.
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