az Alert | Limits and Restrictions on the Right to Strike

Feb 15, 2023

Our labor group analyzed the ruling of the Spanish Supreme Court that considered a strike as abusive and fraudulent.

One of the pillars of collective labor law is the strike, understood as a pressure mechanism aimed at satisfying certain demands of a group of employees.

Being a fundamental right, based on union freedom, it admits graduations and weightings, however, as any constitutional guarantee, it does not have an absolute character.

With the 2017 reform (Law No. 20,940), certain legal restrictions to strike are given by the qualification of companies as strategic or by the determination of minimum services to be fulfilled, to cite some of the assumptions enshrined in the current Chilean legislation.

Notwithstanding the above, it is interesting to dwell on the scope of the strike and its potential qualification as abusive and fraudulent for being detached from its purpose and consequently falling into the figure of “abuse of the right”. Even more so when our jurisprudence has recognized certain protection to the strike beyond a regulated collective bargaining process, conceiving it as a protection mechanism carried out by the workers in the event of possible serious breaches by the employer.

The case we are commenting on in this opportunity refers to the judgment of the Spanish Supreme Court which, even though the strike has a different treatment than in our legislation, the analysis made on the matter is relevant.

In effect, hearing an appeal filed by the union representatives, the court reasoned on the motives, purposes and consequences of the strike, classifying it as abusive and fraudulent, stating that “the strike, in short, is a right that has its limitations and one of them is that it cannot be exercised in an abusive manner, but with the particularity that it falls on the one who alleges its abusive nature“.

It then adds that “the exercise of the right to strike is detached from the reasons that motivated it and, being exercised intermittently, serves the worker for a different purpose, which is to stop working on Saturdays, to extend vacations or to ignore the denials of leave, to the point, it goes so far as to state, that the exercise of the right to strike has become a way of enjoying unpaid leave not contemplated in the law or in the applicable collective bargaining agreement“.

As for its repercussions, it states that “it has caused organizational disorders and material damage to the company, of special relevance and transcendence, which it considers manifestly disproportionate and abusive, in view of the small number of workers who have supported it. To which we can now add the fact that it is an essential public service and of singular affectation to the citizenship, such as the postal and telegraph service“.

In view of the above, he closes his argument regarding the role played by the trade union organization, stating that the “strike is fraudulent, because the calling trade union has promoted that the workers and civil servants affected by the call for strike evade the fulfillment of their obligations derived from the work contract“.

This is an interesting pronouncement which, bearing in mind the differences between our system and the Spanish legal system, it is useful to evaluate whether this legal reasoning could be replicated in our country.

For more information on these topics, please contact our #azLabor group:

Jorge Arredondo | Partner |

Jocelyn Aros | Senior Associate |

Felipe Neira | Associate |

Alejandra Figueroa | Associate |

Te podría interesar

Technology and Knowledge Transfer Bill

Technology and Knowledge Transfer Bill

It is important to highlight that the existence of research, knowledge and scientific results does not automatically guarantee effective technology transfer. On March 28 of this year, the President of the Republic made a Draft Law on Technology and Knowledge Transfer...