The right to strike is a fundamental right in the Spanish Constitution. The legal regulation of the right dates back to 1977 –it is a piece of legislation predating the Constitution itself-. Ever since, the Parliament has been unable to pass more updated legislation on the right to strike, due in part to a lack of consensus between the social partners.
- The constitutional right to strike is recognized for the defence of workers’ interests. The Constitution mandates the exercise of this right, as well as the safeguards necessary to ensure the maintenance of essential public services. The mandate has not been fulfilled and the regulation still in force is a Decree-Law approved before the Constitution. This piece of legislation must be construed in accordance with the Constitutional Court judgment no. 11/1981.
- Strikes affecting a single company may be organised by trade unions, elected representatives (works councils, employee delegates) or the employees themselves.
- Strikes affecting an entire sector may be called by trade unions. General strikes are also allowed as long as they are motivated by a concern related to the workers' interests.
- Every individual employee is free to decide to participate or not in the strike.
- The occupation of the workplace by the strikers is illegal. Furthermore, a strike called in order to change a collective agreement in force is considered illegal.
- External replacement of strikers is illegal. Internal replacement (a striking worker being replaced by a co-worker who does not participate in the strike) is also illegal.
- Some types of strikes are considered unlawful: staggered strikes, work to rule, strikes in strategic positions only. Even some forms of extremely intermittent strikes may be considered unlawful.
- For the strike to be legal, a notice of at least five calendar days must be given to the company. If the company provides a service considered essential for the community, the notice period is 10 days.
- According to the Ministry of Employment, in 2015 a total of 497,483 days were lost due to strike action, compared with 620,568 days in 2014. These figures have nothing to do with the corresponding figures in the 1980s and the first half of the 1990s, where the number of days lost was typically in the range of several millions.
Is the right to strike in danger?
- Strikes in certain sectors which affect the public in a very direct and obvious manner (public cleaning and public transportation are among the top examples) are becoming more and more unpopular from the citizens’ point of view. This social perception may put some pressure on workers and unions at the time of calling a strike.
- In the last two decades, governments and political parties have shown little interest in regulating the right to strike. Union opposition to any regulation not endorsed by the unions themselves and the lack of consensus of the social partners are clear reasons explaining this lack of interest.
- The main concern with strikes is the maintenance of public services (often managed by private sector companies). In the absence of any clear regulation of this issue, the courts have to solve the disputes by basing their judgments on previous judicial decisions (case law). Before the judicial intervention, it is a competence of the public authority (the Ministry of Employment or the corresponding regional or local authority) to adopt the measures aimed at guaranteeing the maintenance of minimum services in sectors such as transportation, cleaning, hospitals, air traffic control, public security, energy, food and water supply, etc. The administrative decision may be challenged before the contentious-administrative courts, which, in turn, may take a long time before resolving the dispute.
- Another important concern has to do with picketing. Peaceful picketing is legally protected under the right to strike in connection with the right to freedom of expression. However, the limits between peaceful picketing and unlawful coercion and intimidation are quite often not at all clear. The criminal code punishes the members of a picket line who attempt to force anyone to participate in the strike.
- In February 2016, a Spanish court acquitted eight trade unionists - members of IndustriALL Global Union affiliates, CCOO de Industria and MCA-UGT - who were charged after joining hundreds of workers in a general strike in September 2010 against austerity measures and changes to the Spanish labour code. They had been charged under Article 315.3 of the Spanish Penal Code, which allows for prison sentences for picketing trade unionists.
(last update: Oct. 2016)