Worker Strikes: Legal Rights, Procedures, and Consequences
Definition and Nature of the Right to Strike
A strike is a collective and concerted cessation of work carried out by a total or partial group of workers to pressure an employer or entity to defend their claims. The right to strike is individually held but collectively exercised. Furthermore, the right to strike is considered a fundamental right of workers.
Who Holds the Right to Strike?
The holders of the right to strike are workers employed under subordinate relationships, as the purpose of this right is to achieve equality of power between labor and management. Therefore, this right is not recognized for autonomous or independent professionals or students. All employees working under contract are entitled to strike, including those in special relationships (e.g., management personnel). Foreign workers may also participate in a strike if they have valid work authorization.
Strike Procedure and Notification Requirements
A strike may be agreed upon by worker representatives, by personal decision of the assembly, or by unions. Notification must be directed to the affected employer. The content of the notification must state the goals and efforts made to avoid the strike, and include a warning period of 5 to 10 calendar days before the start. The warning time varies depending on whether the company provides public services. During the notice period, employee representatives must take appropriate measures to ensure users of the service are informed of the impending strike, typically through advertising.
Rights and Obligations During a Strike
When a strike occurs, the employment contract is suspended, and both parties are relieved of their primary obligations. The contract is paralyzed: there is no work, and consequently, no wages or benefits are paid by the employer. Since the strike is a fundamental right, it cannot result in negative consequences for workers regarding their working conditions or social security benefits.
However, the employee’s social security status is affected; this implies that no contributions are made. The employee cannot receive unemployment benefits or temporary disability payments during the strike. Workers have the right to peacefully advertise the strike and raise funds for maintenance. Coercing another employee to join the conflict is a criminal offense.
The employer is exempted from the obligation to pay wages and is prohibited from replacing striking workers with internal staff or external hires (scabs). Replacement is only permitted to cover minimum services that have been legally established.
Termination of the Strike
The strike can end in several ways:
- The parties reach a collective agreement.
- The striking workers decide to end the strike.
- The parties agree to use a conciliation mechanism.
- The governmental authority intervenes and refers the conflict to mandatory arbitration.
The end of the strike must be notified to the employer. The strike officially ends when workers return to their jobs.
Illegal and Abusive Strikes
Strikes are considered illegal if they are strictly for political reasons. Strikes aimed at modifying terms already agreed upon in a collective bargaining agreement are also unlawful. Furthermore, strikes contrary to legal norms or established dispute resolution contracts are illegal. Solidarity strikes are also generally prohibited.
Strikes considered abusive or illegal include:
- Rotating strikes (staggered stoppages).
- “Zeal” strikes (work-to-rule actions intended to damage service quality).
- Strikes that fail to respect established legal rules and notification requirements.
These types of strikes carry a iuris tantum presumption of illegality (meaning proof to the contrary is accepted).
The possible consequences of participating in an illegal strike are:
- The possible dismissal of the worker for having actively participated in an illegal strike.
- Dismissal for the worker’s refusal to provide legally mandated minimum services.