The largest of Spain’s trade unions, including CCOO and UGT, called a general strike on 14 November 2012. This is the second general strike to take place in Spain in 2012 and coincides with a series of demonstrations across Europe. Support for the strike has varied from region to region and across business sectors.
Our note below provides some general guidelines on how to manage industrial relations duirng strike and highlight the employment and social security implications arising from a general strike.
THE RIGHT TO STRIKE
The legal approach to the right to strike in Spain:
The right to strike is a fundamental right acknowledged in Article 18 of the Spanish Constitution, and regulated by Royal Decree-Law 17/1977 of 4 March on Labour Relations (“RDLLR”) and Article 4.1.e) of the Spanish Workers’ Statute. Case law of the Spanish Constitutional Court has subsequently developed, improved and clarified the legal approach to the fundamental right to strike and its application.
The right to strike is an individual fundamental right, although it is collectively exercised, and it entails both rights and obligations for workers and employers.
THE PREPARATORY STAGES OF CALLING A STRIKE
Prior requirements and dispute resolution
The most representative organisations at state level in Spain, namely the employer associations: CEOE and CEPYME, and the trade unions: CCOO and UGT, reached agreement on 7 February 2012 (“the V Agreement”) on independent labour dispute resolution at a national level. These organisations agreed to implement a preliminary mediation procedure with the aim of resolving their industrial disputes and avoiding a strike. This mediation was carried out unsuccessfully before this recent strike was called.
Security Measures and Minimum Services
A strike can only be held with at least 10 days’ notice. During this period, an employer may take certain security measures to protect its staff and equipment or premises.
It may put workers in charge of protecting these (such as its machinery or raw materials). These measures must not exceed what is necessary to effectively maintain and protect the safety and security of the premises or equipment in question. They must also first be agreed and negotiated with the workers’ representatives and the Strike Committees (these are the representatives of the employees or workers involved in the strike). The measures agreed for the strike this month were similar to those that were agreed in the previous general strike on 25 March 2012.
Only companies providing essential and basic public services (such as public transport, health, electricity or gas distribution, private security, etc.) are able to fix their own minimum measures to protect themselves provided that these are authorised in advance by a relevant public authority. This is to avoid serious damage to public services and prevent a standstill.
THE DEVELOPMENT OF THE STRIKE
Role of the Strike’s Committee
According to Article 5 RDLLR, the Strike’s Committee must convene at a national level prior to the strike taking place. It is made up of a maximum of 12 representatives. This committee communicates with the national employers’ associations. It will also participate in any administrative, contentious or union initiatives designed to resolve the dispute. It must also guarantee that the strike will comply with the minimum measures requirement outlined above in addition to security and maintenance measures agreed or imposed during the strike.
Employer’s’ options during the strike
- Replacement of workers
Workers on strike cannot be substituted or replaced by other workers (i.e. hired from temporary employment agencies or temporarily moved from one location to another within the business). To do so would be a breach of the worker’s fundamental right to strike and the trade union’s freedom (decision 123/1992 of 28 September of the CC).
Furthermore, the Spanish Act concerning Labour Offences and Sanctions states that such behaviour would be deemed to be a very serious breach of the employer’s duties and sanctioned with an administrative fine, except in very specific and exceptional circumstances permitted by law. The employer would also be obliged to repair the damage caused and re-establish the situation (Article 15 Organic Act on Trade Union Freedom).
Employers may only issue a lockout for a period that is absolutely necessary and provided that at least one of the exceptional circumstances set in Article 12.1 RDLRT is met. These are where there is: (i) an evident and serious risk of danger or violence to individuals and/or possessions; (ii) an illegal sit-in or occupation of the premises; or there are (iii) serious problems with production caused by large workforce absences. Employers may only issue a lockout once they have communicated their intention to do so to the Labour Authority.
In the absence of one or more of these exceptional circumstances in Article 12.1 RDLRT; the lockout will be construed to be a breach of the workers’ right to strike as it will not provide them with the option to decide whether they wish to support or join the strike. The employer may be sanctioned as a result.
Picketing, meetings, sits-in and occupation of the work centres
- Publicity and information through picketing
Article 6 RDLLR states that striking workers may publicise the strike in a peaceful wayand they can also collect funds without any coercion. Peaceful picketing must be permitted as part of the right to strike in connection with the right to freedom of speech and expression.
Violent or coercive picketing is illegal although it can be difficult to obtain evidence of the persons or organisations involved in order to attribute liability.
- Meetings and occupation of workplace
Workers are not permitted to access their employer’s premises illegally during a strike, nor must they refuse to leave them if necessary and it is unjustifiable for them to remain. However, the Spanish Constitutional Court has deemed it lawful for workers to peacefully assemble on the employer’s premises during a strike.
The evacuation of a workplace may be lawful though if there is a serious and effective risk of breaching other fundamental rights, such as the rights of other non-striking workers (decision of CC 11/1981).
THE LEGAL CONSEQUENCES OF STRIKING
Effects on the worker’s employment relationship and social security issues
Exercising the right to strike suspends the worker’s employment contract. Accordingly, an employer’s obligation to pay wages for that day (or the duration of the strike) will be suspended and they may deduct any wage from the workers’ monthly pay corresponding to the amount of days that the worker has been on strike.
Social Security implications
An employer is not obliged to make social security contributions on behalf of a worker for the duration of the period that they have been on strike.
Employer’s disciplinary capabilities
During the strike, an employer may impose disciplinary sanctions on a striking worker who commits an illegal act (such as violence or criminal damage). If the employer decides to dismiss a worker, it must ensure that this worker is the direct perpetrator of the illegal act and that this was the reason for dismissal or else the dismissal may be declared null and void.
Workers are not obliged to inform their employer in advance if they decide to exercise their right to strike. Therefore, absences during the strike must not result in any disciplinary measure.
Compensation for damages
An employer is not entitled to any compensation for damages suffered that are directly linked with any production downturn during the strike.
It may, however, ask for compensation for the damages caused by any illegal or abusive action of the striking workers if these are clearly identified. According to case law, neither the Strike Committee nor the calling Trade Union may be declared liable for any damage caused by unidentified workers on strike.