The Right to Strike and Collective Conflicts: A Comprehensive Guide

Posted on Aug 22, 2024 in Law & Jurisprudence

ITEM 14: The Strike and Collective Conflicts: Extrajudicial Procedures for Resolving Disputes

1. The Legal Concept: Abusive and Illegal Strikes

Our system, regulated in Article 28 of the Spanish Constitution (EC), guarantees the right to strike (Art. 28.2 EC) and the freedom of association (Art. 28.1 EC). These are two fundamental rights and therefore receive special protection. They represent a victory for workers and the union movement, as strikes were considered a crime well into the twentieth century.

The Constitutional Court (TC) believes that it is a relevant right that has played an important role in social development.

It should be noted that the strike is an instrument to achieve social democracy and the principle of equality, which seeks a balance in labor relations.

The EC recognizes in Art. 28.2 the right to defend the interests of workers.

The right to strike is enshrined in the EC and set as essential for the following reasons:

  • To give it special protection
  • To emphasize the important social role that the exercise of this right plays

The goal is finding a balance in labor relations and the search for material equality. However, there is a constitutional limit and the requirement to ensure the maintenance of essential public services. This limit is to ensure the exercise of other fundamental and constitutional rights of citizens.

Except for this limit, as we will see, the exercise of the right to strike can be restricted.

The strike is an instrument of self-defense and protection of workers and a measure of collective action with a long-established tradition in labor law. More formally, we can define it as the cessation of work, in concert and decided collectively, exercised by workers to defend their interests.

From this definition, we can derive that the goal is to pressure the employer to improve or maintain working conditions. Frequently, the strike would coincide with a process of negotiation of collective bargaining agreements.

In our system, the model of strike is not contractual, but professional, and so the right to strike can be expressed through legislative measures against the authorities, and thus is legal. The contract is more limited, against an employer or employers.

This right, regulated in Art. 28.2, despite being a fundamental right, is developed by an organic law and is governed by a Royal Decree (RD) of March 4, 1977. This was adapted to the constitution by a major decision of the TC of April 8, 1981. There have been attempts to further develop it, but these have not reached publication.

Moreover, in addition to the RD, when the strike affects essential public services, then there are specific rules, which are minimum service decrees.

Finally, despite the definition given to strike, not all involve the complete cessation of work. The strike is a more complex tool that is used in more areas of labor, and there can be a partial cessation of work, as in a go-slow.

Our system distinguishes two types of strikes that are contrary to law:

1. Illegal Strikes: Art. 11 of the RD

  • Political Strikes: Related or not, outside the professional interests of workers. If it affects these interests, it is lawful.
  • Strike of Solidarity or Support: Considered illegal, and is partially maintained, since it adds, unless it affects the professional interest of those who convened. The TC said that the interests protected in the strike are not necessarily those of the strikers, but rather workers in general. Therefore, almost never outlawed.
  • Novatory Strikes: Aimed at altering the agreement by a collective bargaining agreement, during its lifetime. They are illegal if they are to interpret a collective bargaining agreement, or if the collective bargaining agreement is applied.
  • Strike with Occupancy of the Premises, Establishment, or Business: Where work of non-strikers is impeded.
  • General Strikes: Developed in breach of RD 1977.

2. Unlawful or Abusive or Illegal Strikes or Unfair: Art. 7 DR

  • Rotating or Hinged Strikes: Alternatively developed by different departments or divisions within the company.
  • Strategic Strike or Cap: Made only by those groups providing services at strategic points in the enterprise or supply chain.
  • Strike or Regulatory Zeal: To work slow or by regulation (Iberia)
  • Any other form of collective labor disruption other than the strike

According to the TC, in such contrast to the illegal strike, evidence against it is allowed by the conveners of the same. They are called so because they want to do disproportionate damage and higher than the ordinary strike entails.

2. The Ownership of the Right to Strike

According to constitutional doctrine, the right to strike is attributed to the workers individually, although its exercise is collective.

Workers Who Hold the Right to Strike:

  • Workers subject to the terms of employment status
  • Workers subject to employment of special character
  • Public officials
  • Regular staff

Workers Who Do Not Hold the Right to Strike:

  • Entrepreneurs
  • Self-employed workers
  • Judges, magistrates, and prosecutors, as they hold state power
  • Military and civil guard

However, at the collective level, the right integrates the following facets:

  • Call for Strike: Impossible for the individual worker, but called by trade unions, representatives of the assembly unit, and workers.
  • Choice of the Mode of Strike: Determined by the conveners
  • Adoption of Measures Which Aim to Strike: Such as advertising and extension of the strike
  • Cancellation of the Strike: By the conveners

At the individual level, the rights are part of the accession of a strike, participation and strike action, and the right to derogate or terminate the strike.

3. Dynamics of the Right to Strike: Call, Development, and Completion

The exercise of the right to strike is subject to certain limits laid down in Art. 28 of the EC and also requirements of the RD, and we emphasize:

Call or Strike Declaration (Section 3 RD):

The unit can be made by representatives or trade unions or workers with a simple majority in the assembly and secret ballot.

Advance Notice of Strike:

The notice is a prerequisite and must be 5 calendar days, except for public services, which must be 10 days. This notice is intended to inform the employer and must be made in writing to both the employer and the labor authority, stating the reasons for the strike, the workers’ behalf as part of the strike committee, the efforts to resolve the conflict, and the date and time of the call.

The Strike Committee:

May not exceed 12 members and its main functions are:

  • Seek to resolve the conflict in dialogue with the employer or with employers
  • Participation in the appointment with the employer of the security services and maintenance (as distinct minimum services). If no agreement is reached, the judge of the Social Court will determine these services.
  • Also participates in many trade union actions, administrative or judicial proceedings undertaken to resolve the conflict.

Development of the Strike

During the time of strike, the employer may not replace the strikers with workers from outside the company; i.e., external scab labor is prohibited. The TC also prevents mobility from being used for geographical or functional replacement; i.e., prohibition of domestic substitution. In this regard, it would be void for senior workers to engage in lower functions.

During the strike, they can publicize the same and request financial support. This activity is carried out by picketing, which is legal and peaceful wherever it takes place.

During the strike, provisions must be made to ensure the provision of services necessary for the safety of individuals and the institution, for the maintenance of premises and equipment, and for the resumption of work when the strike ends. The employer proposes and negotiates these services with the strike committee. According to the TC, it would be illegal for the Board to be designated by the employer unilaterally. Finally, the security of these services is the responsibility of the strike committee.

There is an important statement of the TC (137/1997) that says it is compatible with the exercise of the right to strike to publicize the strike and extend it, seeking solidarity with the strikers. Nonviolent picketing is protected and is an essential part of the right to strike.

Completion of the Strike

According to the RD, the strike ends in 3 main ways:

  1. Cancellation: Decided by the strikers themselves, they can do so at any time and call off those who called it.
  2. Agreement Between the Parties in Conflict: These are agreements that put an end to the strike and are equally effective as collective bargaining agreements.
  3. Mediation Through the Inspection of Work: To reach agreement between the parties.
  4. Establishment of Compulsory Arbitration by the Government: To end the conflict in strikes affecting the national economy, long-term strikes, and where the decisions of the parties are far apart.