In everyday language, the word “strike” covers all kinds of action. In Guinean labour law, it is a precise concept: a collective stoppage of work in pursuit of occupational demands, preceded by compulsory notice and negotiation. A strike that does not comply with these rules does not protect those who take part in it.
What is a strike?
All employees have the right to strike (Article 431.1). A strike is a partial or complete, collective stoppage of work, decided by employees in order to secure occupational or economic demands that have not been met (Article 431.2).
Three conditions follow from this:
- the stoppage is collective;
- it concerns occupational or economic demands;
- those demands have been presented and have not been met.
Forms of strike that slow work down without stopping it completely are permitted, provided they are peaceful (Article 431.2).
In our view, a work stoppage on purely political grounds is not a strike within the meaning of the Labour Code: it does not enjoy the same protection, and employees who take part in it may be disciplined.
Strike notice
Every strike must be preceded by ten working days' notice, intended to allow negotiation (Article 431.3):
- it is filed with the management of the company or establishment, or with the employers' organisations of the sector;
- it may only be filed by a representative trade union or, in companies without a union delegate, by the collective of employees in dispute;
- it must be notified in writing to the labour administration, stating the reasons and the demands, failing which it is null and void.
Negotiation during the notice period
As soon as notice is given, the labour administration opens negotiations between the employer and the trade unions, or failing that the collective of employees, under the auspices of the labour inspector for the area where the dispute arose, or of the Inspector General of Labour if the dispute extends beyond that area (Article 431.4).
The parties must attend all summonses and consultation and conciliation meetings. On the last day of the notice period, the inspector records, where applicable, that the negotiations have failed (Article 431.4).
Starting the strike
If no agreement is reached within ten working days of notification of the notice, employees may stop work completely, provided they ensure the essential safety measures and a minimum service (Article 431.5).
Throughout the strike, the parties must continue negotiating under the authority of a representative appointed by the Minister responsible for Labour, and attend that representative's summonses, failing which they face sanctions (Article 431.6). Arbitration proceedings may also be initiated in the cases provided for by the Code, in particular where the dispute affects an essential service (Article 433.1).
Minimum service
An employee requisitioned to provide the minimum service who does not report for duty commits gross misconduct (Article 431.5).
The Code does not specify how employees are designated. In our view, the employer should designate them in writing, limiting the requisition to the posts needed for safety and the minimum service.
Effects of a strike on the contract
- Suspension of the contract: the employee is not paid for the strike period, but returns to their job when the strike ends (Article 431.8).
- No sanction may be imposed merely for taking part in the strike (Article 431.8).
- The mandate of union delegates is not suspended (Article 431.9).
When can a sanction be imposed?
An employee may be disciplined for taking part in action (Article 431.10):
- that is not aimed at securing occupational or economic demands;
- that was not called by a representative trade union or, where there is no union delegate, by the collective of employees;
- that takes place before the notice period has expired.
What is prohibited during a strike
- Obstructing work: no one may oppose, by force or threat, the freedom to work of employees or employers, whether of the same company or not, on pain of criminal penalties (Article 431.7).
- Using temporary agency workers to replace strikers (Article 133.6).
- Closing the company in response to the strike (lock-out): this is prohibited, except where safety so requires or the strike is found to be unlawful, and always after obtaining the opinion of the labour inspector (Articles 432.1 and 432.2). An unlawful lock-out obliges the employer to pay wages (Article 432.4).
In our view, the employer may not hire employees on fixed-term contracts to replace strikers either: this would deprive the strike of its effect and infringe the right to strike.
GHR best practice
- On receiving a notice, check who filed it, whether it was notified in writing to the labour administration, and the date on which the ten working days end.
- Attend every summons from the labour inspectorate, and keep a record of it.
- Identify in advance the safety and minimum service posts, and designate the requisitioned employees in writing.
- Keep a record of strike absences: they are unpaid.
- Do not impose any strike-related sanction without first checking that it falls within the cases in Article 431.10.
- Never use temporary agency workers or close the company to counter a strike.
